Legal Question in Personal Injury in Texas

Who has liability in an ATV accident for the passenger?

My 12-year-old daughter was a passenger on an ATV driven by her 11-year-old friend when it was hit by a car on a public road. (The ATV is owned by the friend's family). My daughter sustained severe injuries, probably with some life-long effects. The young driver of the ATV was at fault and received citations. The ATV owner's automobile and homeowner's insurance companies both claim that their policies do not cover ATVs when the accident occurred off the homeowner's property and have offered only a minimal $5,000 medical settlement. Is it true that ATVs fall into some sort of ''black hole'' not covered by standard policies?

Asked on 11/02/07, 5:02 pm

3 Answers from Attorneys

Dan Street Street Law Firm

Re: Who has liability in an ATV accident for the passenger?

I litigated a case with almost identical facts to yours and eventually settled it for $125,000.00. While I cannot promise that I could do the same with your case, I would be glad to sit down and discuss it with you.

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Answered on 11/02/07, 5:15 pm

Daniel Ross Ross Law Group

Re: Who has liability in an ATV accident for the passenger?

First of all, I'm very sorry to hear of your daughter's injuries. I hope she will make a strong recovery without lifelong problems. Injuries to children require a particular knowledge of how to investigate and present evidence of future damages; however, it has been my experience that children can be especially resilient and eventualy make better recoveries than may be initially expected. I hope that is the case with your daughter.

ATV's are covered differently in different policies of insurance. I would have to review the insurance policies that you have discussed in order to give you an opinion on whether you have been correctly informed. Also, if you have automobile coverage with uninsured or underinsured motorist coverage, it may be possible to collect under your policy. I would also like to review the facts of the case, because there may be other avenues of recovery even if the ATV driver has been deemed to be at fault.

If you would like to contact me, please feel free to call my office and speak to Ashley, and I would be happy to have a consultation with you at no charge. You can also email me at [email protected]

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Answered on 11/02/07, 5:39 pm
Roger Merrill Merrill & Associates

Re: Who has liability in an ATV accident for the passenger?

Here's some typical policy language:

"Exclusions---coverage D shall not apply; 4. a. to the ownership, maintenance, operation, use, loading or unloading of;

(3) any recreational motor vehicle owned by any insured, if the bodily injury or property damage occurs away from the resident premises; ...."

In the case of FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC., v. McMANUS, the plaintiff, who was hurt when a person who had borrowed a motor bike hit him, argued that the bike had been negligently entrusted. This was an argument intended to escape the exclusion under the homeowner policy; but the Texas Supreme Court held that the policy language did not cover a negligent entrustment claim.

Apparently, the atv is not listed on the owner's auto policy and thus is likely not a covered vehicle.

If you have personal injury protection on any auto policies, contact your agent regarding coverage.

Generally, parents are not responsible for the negligent acts of their kids. You could, however, sue the owner for his negligently entrusting the vehicle to his child. This could be worthwhile if he has assets that you can reach.

Let me know if I can help.

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Answered on 11/02/07, 6:10 pm

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